Nost v. Broadhead et al

Filing 38

ORDER ADOPTING REPORT AND RECOMMENDATION 36 . Petitioner's Amended §2254 Petition (Doc. 10 ) is denied and this case is dismissed with prejudice. A Certificate of Appealability is denied and shall not issue. The Clerk of the Court shall enter judgment accordingly and close the file in this matter. Signed by Judge Jennifer G Zipps on 9/16/15. (KAH)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Aage Nost,

No. CV-13-01614-TUC-JGZ
Petitioner,

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v.

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ORDER

Lyle Broadhead, et al.,

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Respondents.

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Pending before the Court is a Report and Recommendation issued by United

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States Magistrate Jacqueline Rateau that recommends denying Petitioner’s Amended

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Habeas Petition filed pursuant to 28 U.S.C. §2254. (Doc. 36.) As thoroughly explained

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by Magistrate Judge Rateau, Petitioner’s petition is untimely. As Petitioner’s objections

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(Doc. 37) do not undermine the analysis and proper conclusion reached by Magistrate

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Judge Rateau, Petitioner’s objections are rejected and the Report and Recommendation is

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adopted.

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Before Petitioner can appeal this Court's judgment, a certificate of appealability

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must issue. See Fed. R. App. P. 22(b)(1) (the applicant cannot take an appeal unless a

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circuit justice or a circuit or district judge issues a certificate of appealability under 28

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U.S.C. § 2253(c)). Additionally, 28 U.S.C. §2253(c)(2) provides that a certificate may

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issue only if the applicant has made a substantial showing of the denial of a constitutional

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right. In the certificate, the court must indicate which specific issues satisfy this showing.

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See 28 U.S.C. §2253(c)(3). A substantial showing is made when the resolution of an

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issue of appeal is debatable among reasonable jurists, if courts could resolve the issues

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differently, or if the issue deserves further proceedings. See Slack v. McDaniel, 529 U.S.

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473, 484-85 (2000). Upon review of the record in light of the standards for granting a

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certificate of appealability, the Court concludes that a certificate shall not issue as the

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resolution of the petition is not debatable among reasonable jurists and does not deserve

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further proceedings.

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Accordingly, IT IS HEREBY ORDERED as follows:

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1. The Report and Recommendation (Doc. 36) is accepted and adopted;

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2. Petitioner’s Amended §2254 Petition (Doc. 10) is denied and this case is

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dismissed with prejudice;

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3. A Certificate of Appealability is denied and shall not issue; and

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4. The Clerk of the Court shall enter judgment accordingly and close the file in this

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matter.

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Dated this 16th day of September, 2015.

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